CAFC Vacates TTAB's EARNHARDT COLLECTION Decision, Finding Surname Analysis Unclear

The CAFC reversed the Board's February 2016 decision in Teresa H. Earnhardt v. Kerry Earnhardt, Inc., Opposition Nos. 91205331 and 91205338 (February 26, 2016) [TTABlogged here], because it was unclear whether the Board, in dismissing opposer's claim that the mark EARNHARDT COLLECTION was primarily merely a surname, had properly applied the CAFC's decision in In re Hutchinson Technology Inc., 852 F.2d 552, 554 (Fed. Cir. 1988). Teresa H. Earnhardt v. Kerry Earnhardt, Inc., Appeal No. 2016-1939 (Fed. Cir. July 27, 2017) [precedential].

Teresa H. Earnhardt, widow of race car driver Dale Earnhardt, opposed the application of Kerry Earhardt, Inc. (KEI) to register the mark EARNHARDT COLLECTION for "furniture" and "custom construction of homes," claiming a likelihood of confusion with her registered mark DALE EARNHARDT for a variety of goods and services, and also alleging that the mark EARNHARDT COLLECTION is primarily merely a surname under Section 2(e)(4).